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Only 10.3 percent of the law clerks and staff attorneys at state appellate courts in Texas are minorities, but that’s understandable given the “extremely small potential applicant pool,” says 4th Court of Appeals Chief Justice Phil Hardberger, who is doing a study of the situation for a state legislative panel. The 2000 census figures show that 32 percent of the state’s residents are Hispanic, 11.6 percent are black and about 3.3 percent are Asian, Native-American or other minorities. But those figures don’t tell the whole story, says Hardberger, who is analyzing diversity among the lawyers employed by the appellate courts over the past four years as part of an ongoing study for the state Senate Finance Committee. Hardberger says he was asked to do the study by state Senator Judith Zaffirini, D-Laredo, when representatives of the state appellate courts appeared before the committee to discuss their budget requests. Zaffirini questioned judges about the racial diversity on their courts during that meeting. The State Bar of Texas reports that 11.6 percent of its members are minorities: 3.6 percent are black; 5.8 percent Hispanic; 1.1 percent Asian; and 0.3 percent Native-American. As of January, the Texas Supreme Court had one African-American and one Native-American among its 18 law clerks and one Hispanic among 12 staff attorneys, according to an Office of Court Administration report. Supreme Court Chief Justice Tom Phillips says he is aware in his hiring efforts of the importance of having attorneys who reflect the diversity of the state. “In the end, I hire the best person available who will take the job,” Phillips says. “Last year, I made offers to three African-Americans and all three turned me down.” The Court of Criminal Appeals had two Hispanics among its nine law clerks and one Hispanic among the 25 staff attorneys, the report shows. Of the 61 law clerks employed by 12 intermediate appellate courts as of January, one is black, four are Hispanic and four are Asian, the OCA reports. Two of the 14 courts don’t have law clerks. The report also shows that the courts of appeals had one black, one Native-American and nine Hispanics among 127 staff attorneys. Eight of the mid-level appellate courts have no minorities working as staff attorneys. Carol Anne Flores, clerk for Beaumont’s 9th Court of Appeals, one of the courts that has only whites working as staff attorneys, says most of those attorneys have been on the job for 10 to 12 years. “We don’t have turnover,” Flores says. But Frank Newton, dean of the Texas Tech University School of Law, says the public will lose confidence in the courts if they do not reasonably reflect the public that they serve. “If a majority of Texans are African-American or Hispanic/Mexican-American, we cannot expect them to have confidence in a bench that has only a fraction of representation from those communities,” Newton says. One problem facing the courts as they try to increase racial diversity on their legal staffs is the decreasing number of minority graduates coming out of Texas law schools in the wake of the 5th U.S. Circuit Court of Appeals’ 1996 ruling in Hopwood v. Texas. That ruling, which is still on appeal, prohibits higher education institutions in Texas from considering race as a factor in admissions. Newton says the courts are at a disadvantage because minority attorneys are in short supply. “We are not producing enough minority attorneys and they are therefore in great demand,” Newton says. “What that means is, firms will hire them and pay them more money than they can make working as a briefing attorney for a court.” A first-year associate at some large firms in Texas can earn as much as $125,000 annually. Marsha Moss, associate vice president and director of the institutional studies office at the University of Texas, says the UT School of Law had four blacks, 33 Hispanics, 31 Asian-Americans and one Native-American among the 444 graduates in the 1999-2000 academic year. Of the 542 UT law school graduates in 1996-1997, 63 were Hispanic; 35, African-American; and 35, Asian-American, Moss says. “If you want to increase the amount of minorities on the courts, then you must increase the number of minorities in law school,” says Hardberger. The situation becomes even more complicated, he says, because the courts typically are looking for law clerks who rank in the top one-fourth or one-third of their class. Susana Aleman, assistant dean for student affairs at the UT law school, says the top one-third of graduates for 1999-2000 included two Hispanics, six Asian-Americans and 137 whites. A major private law school in Texas also has felt Hopwood‘s effects, but not to the same extent as state-supported schools. Jerri Cunningham, registrar at Baylor University School of Law, says the school had one African-American, five Hispanics, three Asian-Americans and three classified as “other” among the 157 graduates in the last academic year. In 1996-1997, Baylor had three African-Americans, 11 Hispanics and one Asian among the 165 law school graduates, Cunningham says. Hardberger says his study shows that over a four-year period, Baylor law school had only five African-Americans and 34 Hispanics among its 614 graduates. POVERTY WAGES Justices at several of the courts of appeals say they make every effort to get the word out about clerkship opportunities and encourage minorities to apply. Waco’s 10th Court of Appeals Chief Justice Rex Davis says his court posts notices of attorney job openings with all the law schools in the state, the NAACP, the League of United Latin American Citizens and the Texas Workforce Com-mission. He says the court also participates in job fairs. “We try to open the door as wide as we can get it,” Davis says. Linda Thomas, chief justice of Dallas’ 5th Court of Appeals, says her court, in addition to working with minority organizations, also sends job postings to every minority member of the Legislature. “We ask that if they know anybody who’s interested, have [the person] get in touch with us,” Thomas says. But Thomas says the low salaries offered by the state courts make it impossible to compete for top minority graduates. “We’re not in a position to get those candidates,” she says, noting her court pays only about $33,000 a year for a law clerk. Hardberger says the average salary for a law clerk working at a state appellate court in Texas is $38,000 annually. The average salary for a staff attorney is $55,000, which he terms “poverty wages” for a lawyer with as much as 10 years’ experience. John Cayce, chief justice of the 2nd Court of Appeals in Fort Worth, says his court recently lost a senior staffing attorney to a federal court because she could make more money. The 2nd Court has no minority staff attorneys and only one minority law clerk, who is Hispanic, the OAC report shows. The salary schedule for the 2nd Court shows the chief staff attorney earns $63,717 a year, while the pay for a staff attorney is $51,200. The court has asked the Legislature to increase those salaries to $85,000 and $72,000, respectively, according to information provided by Cayce. “Two years ago, we went to the Legislature and told them we’re committed to increasing diversity on the courts, but we need more money,” Cayce says. “The answer we got was akin to an unfunded mandate. They said, �We want you to increase diversity, but we’re not going to give you money to do that.’ “ Sen. Rodney Ellis, a Houston Democrat who chairs the finance committee, says lawmakers do need to allocate more money to the courts, but he adds, “I don’t think that money will correct the problem.” Ellis, of counsel at the Houston office of New Orleans-based McGlinchey Stafford, says judges need to do more to convince minority lawyers of the opportunities that could be afforded them if they have worked on appellate courts. In 1980, Ellis says he took about a $4,000-a-year cut in pay from his job working on the legislative staff for then-Lt. Gov. Bill Hobby to go to work for John C. Phillips, who was then the chief justice of the 3rd Court of Appeals in Austin, Texas. Phillips had made history by hiring the first African-American clerk on an appellate court in Texas, the legislator says. “Two weeks after I met him, I went over and told him he ought to make history again and hire me,” says Ellis, who is an African-American. Ellis says his talk with the 3rd Court chief justice made him realize that having a clerkship on his r�sum� would “open doors down the road.” The courts also should look at more than a minority law student’s class ranking when considering applicants, Ellis says. Hardberger says he will make recommendations to the Legislature on how to increase the number of minority students in law schools but declines to discuss his ideas until the study is submitted to the finance committee some time before the session ends in May. However, Hardberger hints that there may be ways to “get around” Hopwood. Related Charts: Minority Clerks and Staff Attorneys at Texas Appellate Courts

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